Confidentiality, Non Circumvention and Non Compete Agreeement
This Agreement is entered into as of the date when signed up between Partner, Renter or Property Manager and their related companies (hereinafter referred to as the “participant”) and TCBProgram, Inc. (hereinafter referred to as the “Producers”) each referred to herein as a "Party" and collectively referred herein as the "Parties".
A. Producers are to disclose certain proprietary and confidential information relating to the potential establishment of business relationships.
B. Parties wish to define their respective rights and obligations with respect to such disclosure as set forth in this Agreement.
1. Definition of Confidential Information. The term "Confidential Information" means all trade secrets and confidential or proprietary information or materials, including, without limitation, any technical information such as software, documentation, test results, designs, configurations, drawings, processes, specifications, instructions, know-how, formulas, reports, data packages, components, inventions, ideas and business information, including, without limitation, customer lists, marketing plans, pricing formulas and distribution methods, whether or not such information would be enforceable as a trade secret or copyright or the copying of which would be enjoined by a court as constituting unfair competition, which is disclosed by one Party hereto to another.
2. Covenant Not to Use or Divulge Confidential Information. The Parties acknowledge and agree that the producers are entitled to protect and prevent the disclosure or misuse of its Confidential Information, and each Party hereby agrees that , at all times after the date hereof, it (a) shall not disclose, use for a purpose other than described above, or permit any third party to disclose or use (i) Confidential Information received or otherwise obtained or learned, directly or indirectly, from the other Party hereto or any third party (pursuant to this Agreement) at any time prior to or after the date hereof, or (ii) information derived by the receiving Party from such Confidential Information, which information the receiving Party could not have developed independently, (b) shall maintain the same secrecy security with respect to the matters listed in clauses (a)(i) and (a) (ii) as it maintains with respect to its own operations, which security shall be reasonably designed to achieve the expectations set forth herein, and (c) shall continue to treat the matters listed in clauses (a)(i) and (a)(ii) as confidential and non-usable, except in each cause for and to the extent to which:
a. Such information is or becomes part of the public domain through no fault of the receiving party;
b. Such information is disclosed (without obligation of confidentiality) by the receiving Party with the prior written approval of the disclosing Party;
c. Such information was, as demonstrated by written records, in the receiving Party's possession before the disclosure;
d. Such information becomes known to the receiving Party from a source other than the disclosing Party, provided that such other source has the right to disclose such information without restriction; or
e. Such information is independently developed by the receiving Party. The parties agree that it shall be permissible under this Agreement to disclose Confidential Information to employees, advisors and consultants of the receiving Party for purposes which are in accordance with this Agreement, provided such persons are aware of the receiving Party's obligations under this Agreement and have agreed to writing to abide by them.
In the event that receiving Party, or any of the receiving Party's respective officers, directors, employees, agents or representatives (including, without limitation, attorneys, accountants and financial advisers) are requested or required by statue, regulation or order of any court of by rule of order of any governmental agency to disclose any Confidential Information, the disclosure of which would otherwise be prohibited by this Agreement, the Party shall supply the disclosing party with prompt notice of such request(s) so that the disclosing Party may seek an appropriate protective order. It is further agreed that, if in the absence of a protective order, the Party is nonetheless advised in writing by its counsel that disclosure of the Confidential Information is compelled, or if such Party would otherwise stand liable for contempt or suffer other censure or penalty, the Party may disclose such Confidential Information without liability hereunder, provided, however, that the Party shall make reasonable efforts to preserve the confidentiality of the Confidential Information if, in the written opinion of the Party's counsel, such disclosure is legally required to be made in a judicial administrative or governmental proceeding.
Covenant Not to Use or Compete. Participants hereby agrees not to use any information obtained in confidence from Producers to produce products, services, or ideas that will directly or indirectly compete with products or services distributed by Producers without written approval of Producers.
3. Copying: Return of Confidential Information. Each Party hereto shall refrain from copying or reproducing Confidential Information of the other Party, except with the prior written consent of the disclosing Party in each instance. In the event that the parties do not enter into a business relationship for any reason, or upon request by either Party that its Confidential Information be returned, each Party will promptly deliver to the other all materials, documents, data, samples, models, and other information containing or pertaining to Confidential Information, and shall not retain any documents or other information, or any reproduction or except thereof, containing or pertaining to any Confidential Information or any derivative thereof.
4. No Implied License. Nothing contained herein shall be deemed to constitute the grant by either Party to the other of any right, interest or license under or with respect to any Confidential Information in the possession of such Party or any participant or employee thereof.
5. Remedies upon Breach. The parties hereto acknowledge that a violation by on Party hereunder may result in irreparable harm to the other which cannot be reasonably or adequately compensated for in an action at law. Therefore, in the event of any breach of this Agreement by either Party, the nonbreaching Party shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to enjoin such breaching Party from violating any of the terms of this Agreement, to enforce the specific performance by such breaching Party of any of the terms of this Agreement, and to obtain damages, or any of them, but nothing herein contained shall be construed to prevent such remedy or combination of remedies as the nonbreaching Party may elect to invoke. The failure of a nonbreaching Party to promptly institute legal action upon any breach of this Agreement shall not constitute a waiver of that or any other breach hereof.
6. General Provisions:
6.1 Entire Agreement. This Agreement represents the entire agreement between the parties concerning the subject matter hereof.
6.2 Modification. This Agreement may be modified only by a writing duly authorized and executed by each of the parties hereto.
6.3 Successors and Assigns. The rights and remedies of the parties under this Agreement shall inure to the benefit of the successors, assigns, and transferees of such Party. No Party hereto shall have the right to assign; transfer or otherwise dispose of is rights in this Agreement or to assign the burdens hereof without the prior written consent of the other Party, which such consent shall not be unreasonably withheld.
6.4 Counterparts. This Agreement may be executed in identical counterparts, each of which shall be deemed to be an original, and both of which together shall be deemed to be one and the same instrument when each Party has signed one such counterpart.
6.5 Attorneys' Fees. In the event of any litigation concerning any controversy, claim or dispute among the parties hereto, arising out of or relating to this Agreement or the breach hereof, or the interpretation hereof, the prevailing Party shall be entitled to recover from the other Party reasonable expenses, attorneys' fees, and costs incurred therein or in the enforcement or collection of any judgment or award rendered therein. The "prevailing Party" means the Party determined by the court to have most nearly prevailed, even if such Party did not prevail in all matter, not necessarily the one in whose favor a judgment is rendered. Further, in the event of any default by a Party under this Agreement, such defaulting Party shall pay all expenses and attorneys' fees incurred by the other Party in connection with such default, whether or not any litigation is commenced.
6.6 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above.
Partner, Property Manager or Renter Electronically Agreed when Signed Up
TCBProgram, Inc dba Koi.Credit